DPP loses appeal after clash with judge

The president of Victoria's highest court and two fellow judges have dismissed an appeal by the Director of Public Prosecutions against four young men who escaped convictions for armed robbery.

The three judges of the Court of Appeal found that a County Court judge had properly exercised his discretion in not convicting the men for a crime that carries up to 25 years' jail.

The appeal court's president, Justice John Winneke, agreed with colleague Justice Alex Chernov that Judge John Smallwood did not wrongly use his discretion, but he warned that "in all but the most exceptional case" armed robbers "should expect" to be convicted.

Despite initial doubts, Justice John D. Phillips concluded that Judge Smallwood had used a choice that was "reasonably open" to him.

Justice Chernov noted that Judge Smallwood accepted that the crimes - which involved the four robbing two youths with a screwdriver in Chadstone - were gratuitous, cowardly and violent.");document.write("

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But Justice Chernov said the offenders' attitude to their families, studies and work, and their reaction to their crimes enabled Judge Smallwood to give considerable weight to rehabilitation, show sympathy and be merciful.

In his lead judgement published this week, Justice Chernov said that while the sentences imposed were "very light", the seriousness of the offences "should not wholly dictate the punishment that is appropriate".

He hoped that each man appreciated the chance given to them.

Victoria's chief Crown prosecutor, Bill Morgan-Payler, QC, argued on DPP Paul Coghlan's behalf that Judge Smallwood's decision not to convict was so manifestly inadequate that it constituted an error of principle.

Judge Smallwood fined each defendant $3000 and ordered them to do 400 hours of unpaid community work over two years on two charges of armed robbery to which they pleaded guilty.

In his sentencing, he said that the purpose of the crimes was not material gain but a "testosterone-laden showing of strength" against victims who had gestured and made comments to the men as they drove by.

The four donned bandannas, one held the screwdriver to one victim's stomach and pointed it at his throat before stealing a phone and a backpack.

Told by the case prosecutor that a conviction was warranted, Judge Smallwood said that "all a conviction does is stain you for keeps . . ."

The original plea hearing in the case was marked by verbal jousting between Judge Smallwood and Mr Coghlan.

Their courtroom clash in December, on issues other than - but during - Judge Smallwood's plan to allow the four armed robbers to avoid convictions, produced terse exchanges.

Judge Smallwood had resented a perceived insinuation that the DPP wanted him excluded from hearing a future trial created because he had refused to accept a fifth co-accused's guilty plea because he believed there was no evidence against him. At one stage, Mr Coghlan said: "It would be helpful if Your Honour listened to what I was saying."

Judge Smallwood said: "It could be . . . would be helpful if you didn't make assertions that you've no basis for . . ."

Mr Coghlan said he was "offended" by the way Judge Smallwood had dealt with the fifth man's solicitor who withdrew after admitting he had not advised his client he had no case to answer.

Mr Coghlan conceded Judge Smallwood was motivated only by justice but "that is what the bee in my bonnet is . . . the way that (solicitor) was dealt with yesterday, if you want to know, because it could have been me when I was his age".

When Mr Coghlan asked if his comments had offended him, Judge Smallwood remarked: "We have known each other long enough to know I'm a very, very hard man to offend - I give you carte blanche, Mr Coghlan."